Conspiracy charges in the Plame case?

It has to be conspiracy to do something in particular. Espionage, anyone?

Jim VandeHei and Walter Pincus report that lawyers close to the Valerie Plame investigation (identified as lawyers for witnesses, but presumably those would be potential defendants) say that Patrick Fitzgerald is pointing toward conspiracy charges.

Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative’s identity.

But a new theory about Fitzgerald’s aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

Note first that everything VandeHei and Pincus report about conspiracy is from defense lawyers. They may be spinning, and Fitzgerald may not be showing all his cards. I’m not sure where VandeHei and Pincus get the idea that the Intelligence Identities Protection Act is the crime Fitzgerald “set out to investigate.” He set out, as I recall, to investigate what crimes might have been committed in the course of unmasking Valerie Plame Wilson’s identity as a CIA operative who once worked under Non-Official Cover. The potnetial defendants and their friends in the White House and the conservative media have been working hard to keep everyone focused on the hard-to-violate IIPA rather than the easier-to-violate Espionage Act.

The second paragraph quoted above seems to me somewhat confusing about the meaning of “conspiracy” as a criminal charge. A “criminal purpose” means either the purpose to do something forbidden by some substantive criminal law or an “attempt to defraud the United States.”

Here’s the full text of the relevant statute, 18 U.S.C. 371

Section 371. Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

So “conspiracy” isn’t a free-standing charge. It has to be a conspiracy to do something, where “something” names a specific crime. That crime might be a violation of the IIPA, or the Espionage Act, or the false statements law (18 U.S.C. 1001), or obtruction of justice. The only act specifically criminalized under 371 is a conspiracy to defraud the United States, but I’m not sure I see how that would apply here.

The point of a conspiracy charge is to be able to bring in people who can’t be shown to have done anything except conspire, and to be able to make a case even where the underlying offense was never completed. So I wouldn’t be surpised to see, e.g., Libby charged under the Espionage Act and Rove charged as a co-conpirator under 371. But I’d bet on a substantive criminal charge against someone.

I keep coming back to Judge Hogan’s remarks

[Chief U.S. District Judge Thomas F.] Hogan said Miller was mistaken in her belief that she was defending a free press. He stressed that the government source she “alleges she is protecting” had already waived her promise of confidentiality. He said her source may have been providing information not to shed light on government secrets but to try to discredit an administration critic.

“This is not a case of a whistle-blower” revealing secret information to Miller about “dangers at a nuclear power plant,” Hogan said. “It’s a case in which the information she was given and her potential use of it was a crime. . . . This is very different than a whistle-blower outing government misconduct.”

” …the information she was given and her potential use of it was a crime …” What crime? Not perjury or obstruction of justice, since this was before the investigation. Not the Intelligence Identities Protection Act, which wouldn’t have covered Miller’s use of the information. The only law I can think of that fits Judge Hogan’s description is the Espionage Act.

Now maybe Fitzgerald can’t prove an Espionage Act case, and will therefore either write a report and fold his tents quietly or try to charge various people with ancillary offenses: perjury, obstruction of justice, or conspiracy to obstruct justice.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: